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State Regulation and Non-state Law

Edited by Hanneke van Schooten and Jonathan Verschuuren

Around the world, the role of national regulation is often hotly debated. This book takes as its starting point the fact that legislatures and regulators are criticized for overregulation and for producing poor-quality regulation which ignores input from citizens and stifles private initiative. This situation has enhanced the role of non-state law, in forms such as self-regulation and soft law. In this book, international scholars in various fields of law, as well as socio-legal studies, address the question to what extent non-state law currently influences state regulation, and what the consequences of non-state law are likely to be for state regulation.

Chapter 5: Can There be Law Without the State? The Ehrlich–Kelsen Debate Revisited in a Globalizing Setting

Monograph Chapter

Extract

Bart van Klink 1. GLOBAL BUKOWINA VS BRAVE NEW WORLD In his provocative essay ‘Global Bukowina: Legal Pluralism in the World Society’, Gunther Teubner (1996) returns to what he considers to be one of the ﬁrst heralds of legal pluralism: Eugen Ehrlich (1862–1922). According to Teubner (1996, p. 3), Ehrlich’s vision of ‘Global Bukowina’ consisted of a civil society globalizing its legal orders and thereby distancing itself from ‘the political power complex in the Brave New World’s Vienna’. In prophetic terms Teubner (1996, p. 3) announces: ‘Although Eugen Ehrlich’s theory turned out to be wrong for the national law of Austria, I believe that it will turn out to be right, both empirically and normatively, for the newly emerging global law.’ Empirically, Ehrlich is deemed to be right because ‘the political–military–moral complex’ – formerly known as the state, I suppose – will increasingly lose ‘the power to control the multiple centrifugal tendencies of a civil world society’. Normatively, Ehrlich is claimed to be right because his theory, by relocating rule-making activities to local contexts, complies with the ideal of democracy. However, Teubner (1996, p. 7) distances himself from (what he sees as) Ehrlich’s ‘romanticizing’ of ‘the law-creating role of customs, habits and practices in small-scale rural communities’. The concept of ‘living law’ will in the current globalization process still have signiﬁcance, albeit a ‘diﬀerent and quite dramatic’ one which is based on ‘cold technical processes’ instead of ‘warm communal bonds’. Although I am not sure whether Ehrlich’s...

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